In a prior appeal, we reversed defendant's conviction for purposeful murder, but we conditionally affirmed his convictions for felony murder and other offenses, subject to the outcome of proceedings regarding the prosecutor's exercise of a peremptory challenge to remove the only qualified African-American juror from the jury as constituted at the time of the challenge. State v. Vaughn, No. A-5910-07 (App. Div. Aug. 12, 2010). The petitions filed by both the State and defendant for certification were denied. 205 N.J. 79 (2011).

Due to the retirement of the trial judge, a different judge conducted a hearing on November 14, 2011. The remand judge concluded that the prosecutor did not act with a discriminatory purpose in causing the removal of the African-American juror, and defendant appeals, arguing in a single point:

THE TRIAL COURT ERRED IN CONCLUDING THE STATE'S EXERCISE OF A PEREMPTORY CHALLENGE TO EXCUSE THE ONLY AFRICAN-AMERICAN FROM THE JURY HAD BEEN PROPERLY UTILIZED AND NOT UNCONSTITUTIONALLY DISCRIMINATORY.

We find no merit in this argument.

In our earlier opinion, we explained the circumstances relevant to the issue that defendant continues to press. In the earlier appeal, defendant argued the trial judge erred by

declining to hold a hearing after the prosecutor exercised a peremptory challenge to excuse the only African-American person in the first jury panel who was qualified to sit as a juror. That juror, the first to be chosen, was employed as an organizer for a health care union in New York City. He had a degree in labor relations from Rutgers University, and he was pursuing a graduate degree in the same subject from Cornell University. The juror had been convicted of driving while intoxicated approximately two years earlier, and he had cousins who worked for the Federal Bureau of Investigation and the Drug Enforcement Administration. He testified that neither his conviction nor his relationship to people in law enforcement would affect his ability to decide the case fairly. The juror, who was unmarried, had four children and lived with a woman who was employed as an accountant. He had traveled extensively, did not watch television with the exception of the BBC channel, and had a production company that staged performances of poetry. The juror was the second person to be excused by the prosecutor.

At the conclusion of the first day of peremptory challenges, defense counsel moved for a hearing on the prosecutor's removal of the African-American juror pursuant to Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 1719, 90 L.Ed.2d 69, 82-83 (1986), a decision premised on federal equal protection grounds, and State v. Gilmore, 103 N.J. 508 (1986), a decision based on the State's constitutional guarantee of an impartial jury. Id. at 522. However, the trial judge denied counsel's motion, determining that counsel had not overcome the presumption of the constitutionality of the prosecutor's challenge by offering prima facie evidence "that the potential jurors wholly or disproportionately excluded were members of a cognizable group and that there [was] a substantial likelihood that the peremptory challenges resulting in the exclusion were based on assumption[s] about group bias, rather than an indication of situation specific bias."

[Vaughn, supra, slip op. at 8-9]

Recognizing that State v. Osorio, 199 N.J. 486 (2009), and Johnson v. California, 545 U.S. 162, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005), created a less "stringent standard . . . when determining [whether a defendant] ha[s] made out a prima facie case, " Vaughn, supra, slip op. at 12, we "reevaluate[d] the evidence" in light of that new standard and found

that prima facie evidence of an unconstitutional challenge exists as the result of the prosecutor's use of a peremptory challenge to excuse the only qualified African-American from a trial of a defendant of the same race, despite the fact that the victims were also African-American. As defendant notes in his brief on appeal, the juror in question appeared to be eminently qualified to judge the case, and the reason for his dismissal was far from evident. In a circumstance in which no pattern of challenges could be established because of the paucity of African-Americans in the jury panel, we are unwilling to conclude that the fact that only one African-American juror was challenged fatally undermines defense counsel's prima facie case. Were we to hold otherwise, discriminatory challenges could escape judicial review whenever the representation of minorities in a jury panel was particularly low.

We therefore remand the matter to the trial court for a hearing as to the basis for the prosecutor's peremptory challenge and a determination by the judge as to whether the prosecutor's conduct was unconstitutionally discriminatory.

[Id. at 12-13]

As directed, the remand judge conducted an evidentiary hearing at which the only witness was one of the two assistant prosecutors who tried the case. He was examined and cross-examined on his reason for exercising a peremptory challenge with regard to the juror in question. The assistant prosecutor testified there was an expectation of an intoxication defense and, as a result, the juror's prior DWI conviction was important in determining whether to allow the juror to remain on the panel, as was the fact that the assistant prosecutor believed the juror was "extremely vague and all over the place when asked when . . . this DWI offense" occurred.

On cross-examination, defense counsel elicited that "there were several jurors who had family members who had alcohol problems in the family that were not excused by the State." And, during cross-examination and redirect examination, the assistant prosecutor suggested he also excused the juror because his vague response about the DWI made him ill-suited to act as foreperson and because the juror would not make eye contact with him throughout jury selection.

The remand judge found the assistant prosecutor to be credible. The judge also applied the appropriate standard in determining whether the use of the peremptory challenge was discriminatory. First, the judge correctly recognized that in our prior opinion we had concluded that the defense met its burden of showing the peremptory challenge was based on race. Vaughn, supra, slip op. at 12-13. The applicable test's second prong required that the prosecution demonstrate a race-neutral basis for the challenge. Osorio, supra, 199 N.J. at 502. The judge determined that the juror's DWI conviction satisfied the State's burden because the assistant prosecutor credibly testified he was persuaded to use the peremptory challenge for that reason and because the juror was vague about it. And, in applying the third prong – weighing the proofs presented on the first prong with the proofs adduced on the second prong – the judge was required to determine whether, by a preponderance of the evidence, the party contesting the exercise of the peremptory challenge – here, defendant – proved the challenge "was exercised on unconstitutionally impermissible grounds of presumed group bias." Id. at 492-93.

In properly applying this test, the judge considered the evidence adduced by both parties during the hearing. Although the defense had forcefully demonstrated that other jurors may have potentially been sympathetic to an intoxication defense based on the experiences of their family members, the judge recognized that only the juror in question had personally been convicted of a DWI offense and, additionally, had provided vague responses about it. And, although the assistant prosecutor suggested other reasons during cross-examination for excusing the juror, the judge recognized that they were not the "be all and end all" of the matter – that it was the juror's DWI conviction and his evasiveness that presented for the State a genuine concern that warranted the assistant prosecutor's legitimate exercise of a peremptory challenge.

The judge's findings were set forth in a very thorough and thoughtful oral decision and are entitled to our deference. Statev. Robinson, 200 N.J. 1, 15 (2009).

Affirmed.

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